Supreme Court Obamacare Decision a Head-Scratcher

filed by Marc Gindin :: June 29, 2012

Every time I try to muddle through Chief Justice John Roberts' Obamacare opinion -- how the so-called individual mandate isn't constitutional but the tax is, how the Commerce Clause cannot be used to regulate the inactivity that Congress may freely tax, how a penalty or a fine is actually a tax even though the government itself insisted it isn't (before insisting it is) -- I stall. I find myself stuck on one point or another, unable to reach a satisfactory, or even legally acceptable, conclusion about what his opinion actually is. If you're a brighter legal mind than I am, please help me out.

Is the individual a mandate a tax? Is it a fine? Is it a penalty? Solicitor General David Verrelli answered "yes" to that question -- insisting on the first day of oral arguments in March that the individual mandate is NOT a tax. Why is this important? See the Tax Anti-Injunction Act, passed in 1867 and reaffirmed decades later, which bars legal challenges regarding taxes that take effect in the future -- those never paid by anyone. As the challenges before the Court concerned taxes (not fees and not penalties) that don't take effect until 2014, a finding by the Court that these arguments were about taxes should have stopped this case dead in its tracks. For these arguments to proceed, the Court needed to accept that the issue here was NOT taxes. But on the second day of oral arguments -- the day often mocked for the inconsistent and sometimes labored arguments by Verrelli, Verrelli himself argued that these same clauses WERE a tax -- a move that "confused" several justices, especially Justice Samuel Alito, who called Verrelli out directly and left him almost speechless, unable to answer the "tax" question clearly.

But again, this is a critical point. If the mandate IS a tax, the Supreme Court CANNOT by law hear the case on Obamacare, let alone rule on it. And yet arguments continued, and the outcome culminated in Roberts' decision that does, in fact, affirm the mandate as a tax and thus constitutional -- sort of. In a way.

Some questions:

If the Supreme Court holds that the individual mandate is a tax, under what authority did it issue an opinion on the matter? Shouldn't the Supreme Court have refused to hear the case until 2014? And even if the Court realized later that it would consider the individual mandate a tax, should it not then have issued a ruling declaring such and holding the case over, again until 2014?

But that's only one point. Roberts goes on to deny the merits of the mandate on the basis of the Commerce Clause, declaring the regulation of inactivity unconstitutional. Some are claiming this as a victory for constitutionalists, but in fact Roberts simply closed one door and opened another -- wider than it has ever been open before. He explains that the federal government has the power to tax -- and that since the individual mandate is just that -- a tax -- Congress was within its powers.

Uh... what? Roberts assures us that the federal government is free to attach conditions -- actions -- positive or negative -- to the payment of taxes -- so long as people can choose between the action and the tax. He gives examples -- earning income as one -- showing how the government taxes any number of things. Roberts then lumps inactivity -- in this case, the choice not to buy health insurance -- into a subset of activity -- a "something" out of a nothing that Congress can choose to tax. Congress then, through the gag-reflex-inducing General Welfare clause, can compel individuals to buy gym memberships, electric cars, bananas, fax machines, whatever -- or else pay a tax. This is mind-boggling.

It also injects MORE questions into my mind:

What is the difference then between a tax, a fee, and a penalty? If one of these terms is used repeatedly in legislation, does that not override a Court's desire to substitute in another term? Where in the Constitution does Congress get the power to compel an action within the private markets? And what are the limits here? Are there any limits?

I'll close with one final thought -- one that constitutional purists will applaud: the General Welfare clause, actually the preamble to the list of enumerated powers granted Congress in Article 1, Section 8 of the Constitution, DOES grant Congress the power to lay and collect taxes; no one reasonable argues this. But Congress's powers to SPEND are confined to the list of 18 powers that follow, and where Congress spends money in a way that exceeds those authorities, it conducts itself outside the bounds of the Constitution. Congress, of course, does this every single day, and John Roberts' opinion on Obamacare doesn't change that. What it DOES do, however, is grant Congress unlimited power to order around the citizenry to do anything at all, without limit, using the IRS as its muscle. This is an amazing misinterpretation of not just the words but the spirit and the history of the Constitution. As Chief Justice of the highest Court in this country, John Roberts should be ashamed today.